PRESTOPNIK v. WHELAN

July 13, 2004.

JAN PRESTOPNIK, Plaintiff,
v.
JOHN WHELAN, individually and as Superintendent of the Greater Johnstown School District; KATHLEEN SULLIVAN, individually and as Assistant Superintendent of the Greater Johnstown School District; JAMES HILLIER, individually and as President of the Board of Education of the Greater Johnstown School District; SHARON RITZMAN, individually and as former President of the Board of Education of the Greater Johnstown School District; JANE DOE NUMBER ONE; and THE GREATER JOHNSTOWN SCHOOL DISTRICT, Defendants.

The opinion of the court was delivered by: DAVID HURD, District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Jan Prestopnik ("plaintiff") brings this suit against
defendants Greater Johnstown School District ("District") and
four of its current and past employees, including Superintendent
John Whelan ("Whelan") as well as the former and current
Presidents of the District's Board of Education ("Board"),
alleging various causes of action: First and Sixth 
termination on the basis of age, in violation of the [ADEA] and
New York Human Rights Law; (2) Second and Fifth  denial of
tenure on the basis of complaints from an influential parent
whose child plaintiff had failed, in violation of the right to
free association, and conspiracy to deprive plaintiff of that
right;*fn1 Third  making allegations of plaintiff's
incompetence as a teacher and terminating her without a hearing,
in violation of her due process rights; and Fourth  with no
rational basis, denial of tenure on the basis of a parental
complaint, in violation of her right to equal protection.

In lieu of filing an answer to the complaint, defendants have
moved to dismiss the second, third, fourth, and fifth
causes of action pursuant to Fed.R.Civ.P. 12(b)(6). Oral
argument was heard on December 12, 2003, in Utica, New York.
Decision was reserved.

II. FACTUAL BACKGROUND

Taken from the complaint, as is required when assessing a
motion to dismiss under Rule 12(b)(6), the following are the
facts. Plaintiff, an English teacher with over twenty years of
experience and a master's degree, was employed by the District
from September 1999 to June 30, 2002, when she was terminated
pursuant to a decision of the Board. She began as a permanent
substitute teacher, but for the last two years of her employment
she was a probationary employee, making her eligible for tenure.
She received positive evaluations while working for the District,
and was recommended for tenure by at least some of her immediate
superiors.

In early April 2002, plaintiff was informed by Whelan that she
would not receive tenure. She claims he gave no reason for this
decision, insisting instead that she sign an agreement allowing
for an additional year of probationary employment. Plaintiff
refused to sign the agreement. Two weeks later, accompanied by a
union representative, she confronted Whelan, demanding a reason
for the denial of tenure. Whelan allegedly told her the denial
was based on a conversation he had with a parent, but neither
gave further details nor disclosed the identity of the parent.
Plaintiff claims, however, such conversation was between the
parent of a child she had failed, and either Whelan, defendant
Hillier, or defendant Hillier's spouse. Plaintiff alleges the
parent "had extraordinary access to, and influence with, [Whelan]
and the . . . Board, and one to whom [Whelan] would routinely
concede so as to keep the PTA happy and retain his position."
(Docket No. 1, ¶ 21.)

The District allegedly continued to demand that she sign the
agreement, but plaintiff claims that, at the time, neither the
agreement nor any other document explained the reasons tenure was
being denied, or what she needed to do in the additional
probationary year to attain it. She claims to have asked Whelan
to answer these questions, and to disclose the identity of the
parent. He allegedly told her that he would disclose the information after she signed the agreement. She refused and asked
for a written explanation of the reasons she was being denied
tenure.

Sometime thereafter, Whelan informed plaintiff in writing that
she was being denied tenure for failure to interact with students
and parents, and to understand the needs of students in the
classroom. Plaintiff claims Whelan never once observed or
evaluated her, and that these reasons were quite inconsistent
with her formal evaluations.

On April 24, 2002, eighteen District teachers were granted
tenure, all of which were allegedly younger and lower compensated
than plaintiff. Plaintiff claims that, unlike her, "many teachers
eligible for tenure no doubt receive [parental] complaints,"
(Docket No. 1, ¶ 69), but still received or will receive tenure.
On May 22, 2002, the Board formally denied plaintiff tenure and
informed her that her employment was to be terminated as of June
30, 2002. Subsequent to being fired, plaintiff contends that a
request for a hearing to contest the claim that she was being
fired for incompetence was denied.

III. DISCUSSION

As noted, defendants have moved to dismiss only the second,
third, fourth, and fifth causes of action pursuant to Fed.
R. Civ. P. 12(b)(6). The first and sixth causes of action 
alleging age discrimination  will therefore not be discussed
herein.

A. Rule 12(b)(6) Standard

&nbsp; In deciding a Rule 12(b)(6) motion, a court "must accept the
allegations contained in the complaint as true, and draw all
reasonable inferences in favor of the non-movant; it should not
dismiss the complaint `unless it appears beyond a reasonable
doubt that the plaintiff[s] can prove no set of facts in support
of [their] claim which would entitle [them] to relief.'"
Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Kaluczky v. City of
White Plains, 57 F.3d 202, 206 (2d Cir. 1995). However,
conclusory allegations that merely state the general legal
conclusions necessary to prevail on the merits and ...

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